Is recent criticism by a judge concerning children cases fair?

5th October ‘20

Re: B (A Child) (Unnecessary Private Law Applications) (2020) EWFC B44

A recent Judgment by His Honour Judge Wildblood QC (“the Judge”) has sparked debate in the family law legal profession after the Judge made a direct appeal to parents and family lawyers to not waste the court’s time by making unnecessary applications to the family court concerning their children.

The appeal arose after the Judge concluded that the original decision taken by a legal advisor to order disclosure of the mother’s medical records had been unnecessary and invasive of her right to respect her private life.

As part of his judgement, the Judge described the extent to which the court diary was being taken up by interim hearings that in their opinion did not require court involvement. Examples given were a decision needing to be made as to how contact between a child and a non-resident parent should be arranged on a Sunday afternoon and which junction on the M4 handover for the child should take place. The following paragraph summarises the view taken by the Judge:

‘Do not bring your private law litigation to the family court here unless it is genuinely necessary for you to do so,’ he said. ‘You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.

Is His Honour Judge Wildblood QC right?

I initially agreed with the judgement as there are so many tools and resources now available to help parents reach an agreement on issues concerning their children. As a collaborative lawyer, and a supporter of dispute resolution, these tools feature heavily in the advice I give to my clients where appropriate: mediation, roundtable meetings, collaborative law, early neutral evaluation and the use of a parenting coordinator are some of the options that could be utilised. For more information about these various dispute resolution options do not hesitate to contact me.

Even if parents can’t agree, the court process can still be avoided with the use of the Child Arbitration scheme – effectively a platform to mutually agree arrangements similar to a private court process which can have the same binding effect as a court order. The only difficulty with arbitration is that this tool can only be used in children cases where it is deemed there are no welfare concerns and both parties agree to use this process.

However, there will always be certain reasons and situations as to why using dispute resolution is not appropriate, or despite attempts being made to use out of court alternatives, one or both of the parents do no wish to use it.  The latter can be frustrating when there is clear potential to reduce stress and resolve a case without court intervention.

The reality is the court system is there to provide a public service to those who need it and should be made available. However, the court pre-Covid 19 was at breaking point and the situation has now been compounded by the continuing pandemic. This has left judges under severe pressure due to heavy workloads and lengthy delays to court hearings being listed. For example, final hearings are now not being listed until next Spring or Summer.

The court process is daunting to many and increasingly costly. Receiving legal advice from a family law solicitor who is a member of Resolution will help you make an informed decision and consider all of the  dispute resolution options available – finding the right option to deliver the best outcome for you and your children.

If you require support or guidance, do not hesitate to contact me@calibrate-law.com. Marc is a Senior Associate and Collaborative Lawyer who works in our family law team. He was nominated for Associate of the Year at the Family Law Awards 2019 and has been nominated for the Citywealth Future Leaders Award.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional or legal advice.

 

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